Calvery v. Peak Drilling Co.

• Decision Date: 08 January 1954
• Docket Number: Civ. No. 5967.
• Citation: 118 F. Supp. 335
• Parties: CALVERY v. PEAK DRILLING CO. (HALLIBURTON OIL WELL CEMENTING CO., third party defendant).
• Court: U.S. District Court — Western District of Oklahoma

118 F. Supp. 335

CALVERY v. PEAK DRILLING CO. (HALLIBURTON OIL WELL CEMENTING CO., third party defendant).

Civ. No. 5967.

United States District Court, W. D. Oklahoma.

January 8, 1954.

Jones & Beauchamp and Elvie L. Sewell, Duncan, Okl., for plaintiff.

Butler, Rinehart & Morrison, Oklahoma City, Okl., for defendant.

Dudley, Duvall & Dudley, Oklahoma City, Okl., Robert O. Brown and Robert E. Rice, Duncan, Okl., for Halliburton Oil Well Cementing Co.

WALLACE, District Judge.

The plaintiff, Calvery, was injured while working as an employee of Halliburton Oil Well Cementing Company (herein referred to as Halliburton) on a well job on which Halliburton was working as an independent contractor; the plaintiff sued the defendant Peak Drilling Company (herein referred to as Peak) which also was working on this same well job as an independent contractor; the plaintiff alleged that his injuries were proximately caused by the negligent manner in which an employee of Peak operated certain machinery which was under the direct control of said employee. The defendant in answering (entitled Response) denied the accident was caused by the negligence of defendant's employee and affirmatively alleged in substance: (1) that the plaintiff was guilty of contributory negligence; and, (2) that the plaintiff was injured by a fellow-servant. In addition, defendant Peak, by way of third-party practice¹ brought in plaintiff's employer, Halliburton, and asked to be indemnified for all sums adjudged against Peak in favor of the plaintiff for the reason that the "injuries to plaintiff were caused by the negligence of third-party defendant in one or all of the following particulars:

"(1) The tools, machinery and equipment furnished by third-party defendant in the operations then in progress were defective.

"(2) The workmen furnished by third-party defendant were carless (sic) and did not exercise that degree of skill reasonably prudent workmen would have under the circumstances.

"(3) The workmen and employees of third-party defendant used improper methods of operating their equipment."

It has been stipulated between the parties to this action that:

"(1) At the time of the accident involved in this law suit, plaintiff Glenn Calvery was engaged in an occupation of a hazardous nature within the purview of the Workmen's Compensation Act of the State of Oklahoma, and entitled to recover Workmen's Compensation benefits provided by such Act from his employer, third party defendant Halliburton Oil Well Cementing Company, in whose general employ plaintiff was at the time of such accident.

"(2) Plaintiff filed a proceeding under the Workmen's Compensation Act of Oklahoma before the State Industrial Commission against Halliburton Oil Well Cementing Company, a qualified self-insurer under the terms of said Act, for medical and compensation benefits; and Halliburton has paid for medical attention and temporary total Workmen's Compensation benefits, but there has been no final hearing in such proceeding and no award made for permanent benefits."

The immediate issue before the Court is whether or not the third-party defendant, Halliburton, properly can be held as a party to this action.

Whether the defendant Peak has a right of action against Halliburton must be determined by the substantive law of Oklahoma inasmuch as Federal Rule 14,² which provides for such an action, is purely procedural in nature and does not enlarge the substantive rights of the parties litigant.³

Separate and apart from the legal impact of the Oklahoma Workmen's Compensation Act,⁴ it appears certain that the allegations of the pleadings place the third-party plaintiff, Peak, and the third-party defendant, Halliburton, in the position of co-tortfeasors. Inasmuch as the general rule of law prevailing in Oklahoma prohibits contribution or indemnity between joint tortfeasors in pari delicto,⁵ Peak's right of action against Halliburton, if it is to be sustained, must be supported by a recognized exception to the general rule; this exception, which is recognized in a majority of jurisdictions, permits the right of indemnity when one tortfeasor is held liable by operation of law for constructive or derivative negligence where the other tortfeasor was actually the author of the negligent acts.⁶ The purest application of this principle is found where under the doctrine of respondeat superior the master, although not personally careless, through legal imputation is held responsible for the negligent acts of his servant.⁷ This exception has been extended to permit indemnity in cases where courts have found as between two co-tortfeasors one is deemed to have been primarily or actively negligent where the other was merely secondarily or passively negligent.⁸ This exception as well as the rationale of the exception was recognized by Chief Judge L. Hand in Marra Bros., Inc., v. Wm. Spencer & Son Corporation when he observed:⁹

"Yet it is true, at least when the putative indemnitor is not protected by a compensation act, that courts have at times based indemnity merely upon a difference between the kinds of negligence of the two tortfeasors; as for instance, if that of the indemnitee is only `passive,' while that of the indemnitor is `active.' Such cases may perhaps be accounted for as lenient exceptions to the doctrine that there can be no contribution between joint tortfeasors, for indemnity is only an extreme form of contribution. When both are liable to the same person for a single joint wrong, and contribution, stricti juris, is impossible, the temptation is strong if the faults differ greatly in gravity, to throw the whole loss upon the more guilty of the two."

However, a careful study of the allegations contained in the pleadings of the case at bar fails to disclose any logical basis upon which the kind and character of negligence charges against Peak and Halliburton can be distinguished. Both allegations of negligence imply primary and active negligence. The original complaint asserts a claim against Peak by virtue of the negligent manner in which one of Peak's servants operated certain machinery; and, the third-party complaint alleges that Halliburton was guilty of negligence in furnishing defective "tools, machinery and equipment" for the job in question and in supplying workmen who discharged their duties negligently and not in conformity with accepted methods of operation. Peak can neither assert that it is being held responsible constructively for negligent acts committed by Halliburton or Halliburton's servants nor that its own negligence varies in character or gravity from the alleged negligence of Halliburton. Both complaints can only be interpreted as alleging active and primary negligence which concurred in result.

Peak urges that the Iowa case of American District Telegraph Company v. Kittleson¹⁰ is direct authority for impleading Halliburton and gaining indemnity for any amount recovered by the plaintiff from Peak. However, although the facts in the American District Telegraph Company case, supra, are somewhat analogous with the instant facts¹¹ a reading of the opinion indicates that the Court of Appeals in the Iowa case reached its conclusion upon the theory that the third-party complainant had been guilty of negligence which differed in character from the negligence asserted against the third-party defendant.¹² The Court in addition to implying that the third-party defendant's negligence was active compared with mere passive negligence on the part of the third-party plaintiff, also had before it the fact that the third-party defendant had failed to provide the employee of the third-party plaintiff with a safe place in which to work.¹³

Peak's lack of a right of action against Halliburton is independently emphasized when we consider the force and effect of the Oklahoma Workmen's Compensation Act¹⁴ upon the issue in question. The plain wording of this Act appears to expressly prohibit indemnity under the instant facts even upon concession that the common law in Oklahoma did permit such an action. Section 12 of the Oklahoma Workmen's Compensation Act provides:

"The liability prescribed in the last preceding section shall be exclusive and in place of all other liability of the employer and any of his employees, at common law or otherwise, for such injury, loss of services or death, to the employee, spouse, personal representative, parents, dependents, or any other person, except * * *." (Emphasis added.)

The portion of this statute "or any other person" apparently was meant to apply to all third persons including would be indemnitees such as Peak.

Although the Oklahoma Supreme Court has not yet specifically passed upon the question in issue¹⁵ this Court holds the present impression that the Oklahoma legislature in enacting this restricted liability provision had in mind the purpose recognized by the Maryland Supreme Court in Baltimore Transit Co. v. State to Use of Schriefer:¹⁶

"We think the weight of authority supports the proposition that the Compensation Law limits the employer's liability as well as the employee's recovery. The employer should not be held liable indirectly in an amount that could not be recovered directly, for this would run counter to one of the fundamental purposes of the compensation law."¹⁷

The North Carolina Court in Hunsucker v. High Point Bending & Chair Company¹⁸ in reviewing all recent authorities from the various jurisdictions held that the North Carolina compensation act, G.S. § 97-1 et seq., abrogated both the statutory right of a negligent third party to claim contribution from a negligent employer in equal fault and the common law right of a passively negligent third party to demand indemnity from an actively negligent employer.¹⁹ The result was supported by the reasoning that the compensation act relieves the employer from the position of a tortfeasor and in its stead places an absolute responsibility upon said employer...